Johnston v DHHS - [2019] VSC 431

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03983

CHRISTINE FAY JOHNSTON	Plaintiff
v
DEPARTMENT OF HEALTH AND HUMAN SERVICES	First Defendant
- and -
DR CHRISTINE LE	Second Defendant
- and -
MR JOHN GRIFFITHS	Third Defendant
- and -
MR ROGER WESTH	Fourth Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2018
DATE OF JUDGMENT:	28 June 2019
CASE MAY BE CITED AS:	Johnston v DHHS
MEDIUM NEUTRAL CITATION:	[2019] VSC 431

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JUDICIAL REVIEW — Accident compensation — Medical Panel Review — Opinion on medical questions — Whether Panel exceeded its jurisdiction — Whether Panel failed to ask and answer the right question — Whether Panel failed to take into account relevant considerations — Whether Panel misunderstood the evidence before it — Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 284, 302, and 304.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	F C Spencer	Slater and Gordon Lawyers
For the First Defendant	M F Fleming QC R L Kaye	Injury Disputes Practice Lawyers

HIS HONOUR:

Introduction

Christine Fay Johnston (the plaintiff) commenced employment with the Department of Health and Human Services (the first defendant) in mid-2014. She worked part-time as a disability support officer in a residential care unit for disabled adults.

On 6 June 2015, the plaintiff fell and injured herself at work.

On 15 June 2017, the plaintiff was examined by a Medical Panel (the Panel) convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA). The Panel was made up of the second, third and fourth defendants. On 10 August 2017, the Panel expressed its opinion in respect of certain questions relating to the plaintiff’s capacity and injuries resulting from her fall at work (the Opinion).

The plaintiff applies pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 for judicial review of the Opinion dated 10 August 2017. By her Amended Originating Motion dated 22 June 2018, she seeks an order in the nature of certiorari quashing the Opinion and an order in the nature of mandamus remitting the questions in respect of which the Opinion was given to a differently constituted medical panel to be reconsidered in accordance with law.

The first defendant submits that there is no error in the Opinion. The second, third, and fourth defendants did not participate in the proceeding and informed the Court that they would submit to such orders as the Court might make.

In support of her application, the plaintiff relies upon an affidavit affirmed by her on 4 October 2017, the affidavits of her solicitor, Blagica Miloseski, sworn on 5 October 2017 and 25 July 2018, and an affidavit by her husband, Tony Alfred Johnston, affirmed on 4 October 2017. Both the plaintiff and her husband were cross examined on their evidence. The first defendant relies on an affidavit sworn by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnston v DHHS

Details

AGLC: Johnston v DHHS [2019] VSC 431
Case: [2019] VSC 431
Decision Date: 28 June 2019

CaseChat Overview and Summary

The applicant, Johnston, sought judicial review of a decision by the Medical Panel Review, which was established under the Workplace Injury Rehabilitation and Compensation Act 2013. Johnston sought to challenge the Panel's decision regarding the extent of his entitlement to compensation for a workplace injury. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court needed to determine were whether the Panel exceeded its jurisdiction, whether it failed to ask and answer the right question, whether it failed to take into account relevant considerations, and whether it misunderstood the evidence before it. The applicant argued that the Panel's decision was flawed and did not properly consider the evidence and applicable legal standards. The respondent, the Department of Health and Human Services, defended the Panel's decision, asserting that it was within its jurisdiction and that the Panel had correctly applied the relevant legal principles.

The court found that the Panel did not exceed its jurisdiction and had correctly applied the relevant statutory provisions. The Panel had asked and answered the right question and had properly considered the evidence before it. The court also found that there was no evidence to suggest that the Panel misunderstood the evidence or failed to take into account relevant considerations. The applicant's arguments were rejected, and the Panel's decision was upheld.

The final orders of the court dismissed the applicant's claim for judicial review and ordered the applicant to pay the respondent's costs of the proceeding.

Orders